By GNGF on September 3rd, 2022 in
What Are the Types of Probate in AZ? Arizona has four types of probate. We have covered each Arizona probate process below, including what they entail.
Maybe this is technically not a probate, but it is an important first step in determining what to do after someone dies. In the Arizona small estate procedure, no action is required from the Court clerk or judicial officer (judge or commissioner). Rather, in certain limited cases involving small estates, the rightful beneficiary may be able to collect the decedent’s assets by simply filling out and submitting some simple paperwork.
Of course, there are certain limitations and requirements. Instructions and forms are available through the Maricopa County, Arizona self-help website.
Informal probate is the most straightforward kind of actual probate. Informal probate is the process of submitting the paperwork to the probate court registrar who may appoint the personal representative and admit a will to probate or that the person died intestate (without a will). All without a court hearing before a judge. But informal probate is not available in all cases.
Informal probate may be used in Arizona when:
- If there is a will, the applicant (party applying to probate the will) has the original last will and testament;
- If there is a will, it satisfies all of the requirements to be a valid will under Arizona law;
- The testator decedent died less than two years before the informal application was filed; and
- The person requesting appointment as personal representative has priority for appointment.
If these and other conditions are satisfied, the applicable Arizona Superior probate registrar has the power to and usually will appoint the personal representative and probate any valid original will offered for probate.
Once the request has been granted and the registrar has issued the personal representative’s letters of appointment, the probate process is considered active.
The personal representative will then have to undertake numerous duties and responsibilities, including locating and collecting all the decedent’s property, making an inventory and valuation of the property, giving notice to creditors, settling any creditor’s claims and then disbursing the property to the eligible parties.
In Arizona, formal probate, unlike informal probate, is the process where the petitioner files a petition requesting that a judicial officer decide an issue or direct that action be taken, usually after notice to all interested parties and a court hearing. This involves more paperwork, time, and expense than informal probate.
So, as you would expect, formal probate is used when there is a dispute between the parties involved that needs to be decided by the court or there is some reason why informal probate is unavailable.
For example, the parties may have conflicting interpretations of a will or dispute the appointment of a personal representative. In other cases, the parties may contest the validity of a will. When these and other issues arise, the court might need to step in and rule on the disputed issue.
As explained above, informal probate is only available if it has been less than two years since the decedent died. If it has been more than two years, those interested or involved in the estate may still open probate. Similarly, it is possible, in certain circumstances, to probate a copy of a will. In these and other cases, you must use the formal probate process.
Below are some of the most common reasons for contesting a will, creating the need for formal probate:
- The testator lacked testamentary capacity when they made the will.
- The will was made from fraud or was forged.
- The testator was unduly influenced.
- There were no witnesses to the will and is not a holographic will.
- The will had missing signatures.
Once the personal representative is appointed, with or without the probate of a will, the estate is considered active and the personal representative has the same basic administrative duties as if the representative was appointed in informal proceedings.
A personal representative appointed in formal or informal proceedings has duties to, among other things, collect, inventory and value all estate assets, give notice to creditors, file and pay taxes, pay valid creditor claims and, thereafter, distribute the remaining estate to the rightful heirs or beneficiaries.
“Informal Probate” and “Formal Probate” in Arizona just refers to how the probate process is started – whether the paperwork is reviewed and approved or rejected by the probate registrar without advanced notice to interested persons (informal probate) or decided by a judge with advance notice and an opportunity to object by interested persons (formal probate). In either case, if there are disputed issues or problems, they may be presented to a judge for decision.
In a supervised probate, the court oversees part or the entire process. For example, the personal representative may need the court’s approval before making any decision about the testator’s estate, such as selling assets, distributing assets to heirs or paying off creditors.
This subcategory of probate administration might be necessary when the Court is convinced that there are very special and sensitive concerns that require ongoing supervision. For instance, questions about the personal representative’s competency might arise, warranting the need for supervised probate, especially if the personal representative is unable to obtain a bond. Supervised probate is very rare.
Are All Probate Proceedings Public Record?
Yes, all probate proceedings are considered public records in Arizona, unless the records are defined as “confidential” under Arizona’s Rules of Probate Procedure or the Court directs that the file is sealed and private.
To access probate documents in Arizona, you will need to contact the Arizona County Superior Court where the probate case was filed or is ongoing. In some Arizona counties, such as Maricopa County, you may access information online.
The details required to access these records vary from one court to another. Generally, you will need the first and last name of the decedent.
The amount of information and documents in a particular probate case depends on the complexity of the probate matter. For example, in the case of supervised probate, you should expect more paperwork about the probate process. This is because the court must typically approve or rule over each step of the probate process in a supervised probate, meaning more paperwork.
Many records are not available online, so you may need to go to the Court clerk to request records. Fees may apply.
A probate record includes any document created by the probate court or any document submitted to the court. Examples of these documents include the application or petition for probate, the will, notice to creditors, letters of administration, financial records, creditor’s claims, notices, Court rulings and orders.
If you are wondering whether it is possible to keep these records private, the answer is yes. When someone dies and their estate goes through probate, while generally open to the public, the Court has the power to seal the file and declare the records private and confidential. To seal a file, the party requesting privacy will need to make a special showing as to why confidentiality is needed for the particular filing or probate case.
However, requesting confidential treatment is not required for all private documents and information. Certain information and documents are automatically deemed confidential and not available to the general public, pursuant to Arizona Probate Rule 8.
Such records include those containing confidential or private information. For example, social security numbers, bank account numbers, medical records, budgets, inventories of assets and accountings are all automatically deemed confidential. Documents that are defined as confidential under the Rule are not public record of the probate case.
Berk Law Group Can Help with the Arizona Probate Process
Hiring an experienced Arizona estate and probate attorney is one of the best ways to plan and avoid unnecessary conflict after someone dies. At Berk Law Group, our probate litigation team of experienced lawyers will always have your best interest at heart. And if you are the personal representative and need legal advice regarding the probate process, we are just a phone call away.
Get in touch with us today to schedule a consultation with someone who understands the Arizona probate process.